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In Legal Trouble, Photographer Appeals for Help

Seattle photographer Mike Hipple reports that he has run out of money to defend himself against a copyright infringement claim by a sculptor, and he's now trying to raise money by selling a self-published book.

"My lawyer recently [quit] on me because I cannot keep up with the legal costs," Hipple says. "I've found another lawyer to assist me, this time on a pro-bono basis thankfully, but I still have a lot of costs" for expert witnesses, depositions and other expenses.

Hipple is being sued for infringement over the stock image shown here. It depicts a dancer interacting with bronze footprints embedded in a Seattle sidewalk. Jack Mackie, one of the sculptors who created the footprints to illustrate the "Mambo" dance, filed the claim against Hipple last year.

Hipple shot the photograph in 1997, and distributed through his stock agency, AGE Fotostock. Mackie discovered it in 2007.

Hipple says he has tried without success to settle the case with Mackie.

Hipple's first lawyer argued that the sculpture is a "derivative" representation (of dance step instructions) that lacks enough originality to qualify for copyright protection.

Hipple said he's also arguing that his use of Mackie's work is allowed in this case under the Fair Use doctrine. "If this doesn’t qualify as fair use of the sculpture, I don’t know what does," he said.

Fair Use is an exemption in the copyright law for certain uses, such as criticism, comment, and news reporting. It is decided on a case-by-case basis.

Hipple's fund-raising book, called Dailies, is a 40-page collection of personal images that Hipple is selling for $32.95 on Blurb.com. More information, including a preview of the book, is available at http://www.blurb.com/books/1386481.

Update June 11, 2010: Mackie's original complaint is available here. Hipple's motion to have the case dismissed, which was denied, is here. A more complete file of the case documents can be accessed at www.pacer.gov.

From the sounds of it, it doesn’t appear that Hipple was intentionally trying to infringe on the copyright of the sculptor. As he’s apparently tried to settle the case already, I can only assume that Mackie is out for blood… money not being the issue, but hurting the photog is.
Don’t get me wrong, copyright infringement needs to be defended strongly by anyone in the creative industry. But this seems a bit excessive based on the info presented.
On a side note, shouldn’t Hipple’s stock agency (AGE Fotostock) be partially responsible for this? They accepted the photo into their library without a release, marketed it, and profited from it’s licensing. Aren’t they just as liable? Unless their contract with Hipple covers them.
My two cents.

It would seem logical that if this is displayed in a public sidewalk that any such work would then be public domain. If the public has no right to photograph the display it should be removed from public property.

This is absolutely ridiculous. I just read through the complaint, it explained that these bronze footsteps are installed on a public sidewalk. I understand that the creator is angry about the photographer profiting off of his (the creator) work..but he should have thought about that before he installed his work on a PUBLIC SIDEWALK. This guy has some nerve to be chasing this photographer in court…

This begs the question: Can I be sued for taking a photo of someone in front of a statue? A painting? If the photo is resold, am I then in trouble? I agree with Arias (Zack?). It’s really a shame. I forwarded this post to Carolyn Wright, the Photo Attorney, as she’s always interested in stuff like this. To David Walker: Thanks for posting the original complaint.

There is a time limit. After a specific amount of time publicly installed artworks are considered public domain. I’m not sure what the time limit is but ANYTHING photographed from public areas and not containing discernible faces is considered public domain.

Sorry but this time its the photographer’s fault. As the case claims there is a copyright notice attached to the sculpture. Whether copyright infringement is intentional or not you can’t have it both ways. Its obvious from many of the comments here that no one really knows copyright on either side of the fence – especially when it comes to commercial applications. My 2¢ . . .

Fair use is a pretty weak defense for this since he’s SELLING the image through his stock agency, and criticism, comment and news reporting doesn’t really cover commercial sales now does it?
And regarding comment from Borsia: “It would seem logical that if this is displayed in a public sidewalk that any such work would then be public domain. If the public has no right to photograph the display it should be removed from public property.”
That’s not how copyright works. It doesn’t matter if a work is displayed in public or not, copyright in USA is automatically assigned to the creator of a work as soon as said creation is fixed in tangible format, and cannot be released until the creator says so, or the copyright expires. The public can photograph something visible in or from a public area all they want, but if the image is mostly or entirely of a copyrighted work, you can’t then turn around and sell that image as your own creation, and that’s what the issue is here.

I remember back in the mid 1970s when going to a dance studio,they had those same types of footprints on the floor. Perhaps the sculptor attended a dance studio and that’s where his inspiration came from ?
I also remember back in the 1960s seeing prints like this in a sidewalk…wish I could be more specific.
I really hope they settle. I feel this was intentional infringement…Also, isn’t it *OUR* tax dollars that also paid this artist to have his work on public display ?
Linda

OOPS..I had a typo.. I feel this WAS NOT an intentional infringement… Don’t know where the *NOT* vanished to!
I remember back in the mid 1970s when going to a dance studio,they had those same types of footprints on the floor. Perhaps the sculptor attended a dance studio and that’s where his inspiration came from ?
I also remember back in the 1960s seeing prints like this in a sidewalk…wish I could be more specific.
I really hope they settle. I feel this was NOT an intentional infringement…Also, isn’t it *OUR* tax dollars that also paid this artist to have his work on public display ?
Linda

Bpesti: Everything is copyrighted and owned by the creator. Would this mean that NOTHING can be photographed ?
The artist owns the rights to his work that others can not copy the medium but the photographer would have the rights to the photo that he snapped.
Why can’t this photo be used for editorial purposes ?

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